Itulu v London Fire & Emergency Planning Authority (Practice and Procedure: Costs)

Under Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, an Employment Tribunal may treat a party's unexplained departure from a hearing, after an adjournment has been refused and a warning given, as unreasonable conduct.

There need not be a precise causal link between that conduct and every item of costs claimed. Causation remains relevant, however. Where the unreasonable conduct begins at an identified point, the tribunal must explain an award of costs incurred before that point. It may award costs reasonably caused by the need to continue and dispose of an unwithdrawn claim in the party's absence.

The Claimant left an Employment Tribunal hearing with her lay representative on the second day, after procedural applications had failed. The Tribunal continued in her absence, dismissed her discrimination and wages claims, and later ordered her to pay £1,900 of the Respondent's counsel's refresher fees for the second and third hearing days.

The Tribunal found no unreasonable conduct before the Claimant's departure. It found that her absence on the second day was unreasonable and that the Respondent had to call witnesses and continue into a third day. The Claimant appealed the costs order, challenging both the finding of unreasonable conduct and the causal basis for the costs awarded.

1. Appeal allowed in part. The Employment Tribunal was entitled to find that the Claimant's departure with her representative was unreasonable. She had been refused an adjournment, warned that the hearing might continue, and left without stating that she wished to proceed separately from her representative or giving the explanations later advanced at the costs hearing.

2. The Tribunal did not need to determine definitively whether those later explanations were true. Its finding that they had not been given at the hearing was sufficient. Had the Claimant wished to proceed without her representative, she should have made that clear so that the Tribunal could case-manage the position.

3. The Tribunal also gave an adequate causal explanation for the third-day refresher. The Claimant left the claim unopposed without withdrawing it. The Tribunal had to dispose of it, and was entitled to continue after warning her. The need to call the Respondent's witnesses and proceed into a further day resulted from that unreasonable course of conduct. Rule 47 gave the Tribunal a broad discretion; no ruling was made on its precise ambit.

4. However, the second-day refresher had been incurred before the Claimant's unreasonable conduct began. Although a costs order does not require a precise causal link to each item, causation is not irrelevant. The Tribunal gave no reason for including that pre-existing fee. It should not have awarded it.

5. The EAT substituted an award of £950, rather than remitting the matter. On the subsequent application under Rule 34A(2A) of the Employment Appeal Tribunal Rules 1993, it awarded the Claimant £1,000 of her appeal fees, reflecting partial rather than complete success.

• Employment Appeal Tribunal: Allowed the appeal in part and reduced the Employment Tribunal's costs award from £1,900 to £950.
• Employment Tribunal, London (South): On 25 June 2015 ordered the Claimant to pay £1,900 in costs after finding that her absence from the hearing on its second day was unreasonable.